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ROSS v. PHILADELPHIA FEDERATION TEACHERS (03/13/73)

decided: March 13, 1973.

ROSS, ET AL.
v.
PHILADELPHIA FEDERATION OF TEACHERS, ET AL.



Appeal from the Order of the Court of Common Pleas of Philadelphia County, in case of William Ross, President, Philip Davidoff, Toby Ann Boonin, Arthur Thomas, Delores Oberholtzer, George Hutt, Robert Sebastian, Alec Washco, Jr., Augustus Baxter, Members of the Board of Education of the School District of Philadelphia, v. Frank Sullivan, President, Vernetta Tolliver, Sonya Richman, Elliot Florin, James McGinley, Edward Johnson, John Ryan, James Garberina, Audrey Wright, Marvin Schuman, Nicholas Luongo, Leon Shore, Melvin Driban, Harold Emerson, Harold Kutler, Samuel Brown, Lou Chrispin, Joseph Ciasullo, Anthony Siani, Dorothea Bell, Maryfrances Flanagan, Thomas Cloney, Lloyd Yancey, Louis Frantz, P. J. Crosby, Fred Sherman, Raymond Pollard, Jaqueline Meachem, Philadelphia Federation of Teachers, Local No. 3, No. 558 January Term, 1973.

COUNSEL

Leonard M. Sagot, with him John J. Poserina, Jr., Thomas W. Jennings, and Ettinger, Poserina, Silverman, Dubin, Anapol & Sagot, for appellants.

Vincent J. Salandria, with him Edward B. Soken, Robert T. Lear and Alan H. Gilbert, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman. Dissenting Opinion by Judge Crumlish, Jr. Dissenting Opinion by Judge Blatt. Judge Mencer joins in this dissent.

Author: Bowman

[ 8 Pa. Commw. Page 207]

In this appeal by the Philadelphia Federation of Teachers two issues are raised. The first -- a threshold question of jurisdiction -- is whether the lower court properly concluded that it had jurisdiction to entertain a complaint in equity under Section 1003 of the Public Employe Relations Act*fn1 (PERA) filed at a time when a strike by teachers in the Philadelphia school system was not yet in progress; the court recognized, however, that the equitable relief sought could not be granted until a strike was in progress.

The second issue is whether the lower court erred as a matter of law in concluding under the facts reasonably reached that the strike then in progress "created a clear and present danger of threat to the health, safety and welfare of the public," the statutory criteria for the granting of equitable relief under Section 1003 of PERA.

The history of collective bargaining between the Philadelphia Federation of Teachers and the School District of Philadelphia for the 1972-1973 school year must be briefly recited as the factual background for the issue of jurisdiction which must first be resolved.

For the prior school year of 1971-1972, the Federation and the District were parties to a collective bargaining agreement which by its terms expired August 31, 1972. Collective bargaining for a new contract had reached an impasse and while the record before us does not disclose in detail the procedures followed after impasse, it is clear that on September 5, 1972, the member teachers of the Federation did not report for work incident to the scheduled fall opening of the public schools of Philadelphia. The lower court, having justifiably

[ 8 Pa. Commw. Page 208]

    concluded that such action constituted a strike, then recites the undisputed events leading up to the filing of a complaint in equity by the District.

"As a consequence of said strike, the schools of the School District of Philadelphia were closed from September 5, 1972, until September 28, 1972, at which time the parties entered into a Memorandum of Understanding (Board Exhibit 1) in which the Union agreed to return to work under the provisions of the September 1, 1970 -- August 31, 1972, collective bargaining agreement.

"The aforesaid Memorandum of Understanding was due to terminate by its terms on December 31, 1972, if a new contract was not consummated by that time. A new contract agreement was not reached by December 31, 1972, but the Union agreed to a one week contract extension terminating on January 7, 1973.

"On January 3, 1973, the Philadelphia Federation of Teachers conducted a general membership meeting at which meeting a vote of the Philadelphia Federation of Teachers bargaining unit members was taken concerning whether to accept the report and recommendation of Arnold M. Zack, Esquire, the Fact Finder designated by the Pennsylvania Labor Relations Board to hear the facts relevant to the impasse between the Philadelphia Federation of Teachers and the Board of Education of the School District of Philadelphia. By a vote of 8,745 to 1,850 the Philadelphia Federation of Teachers voted to reject the report and recommendations and to strike the School District of Philadelphia, effective January 8, 1973."

Faced with this declaration by the Federation to resume the strike, the District filed its complaint in equity seeking injunctive relief on Thursday, January 4, 1973. The Federation promptly filed preliminary objections to the complaint asserting that a court of equity

[ 8 Pa. Commw. Page 209]

    was without jurisdiction under the statute as no strike was in progress as of January 4, 1973.

By opinion and order dated January 5, 1973, the lower court sustained the preliminary objections "to the extent it deals with the jurisdiction of the court . . . to grant an injunction before a strike actually occurs." It further ordered hearings on the complaint to begin Monday, January 8, 1973, which was the date fixed by the Federation for resumption of the strike and on which date the strike was in fact resumed.

In Calabrese v. Collier Township Municipal Authority, 430 Pa. 289, 240 A.2d 544 (1968), our Supreme Court clearly delineated the equity jurisdiction of courts of common pleas in Pennsylvania. It said:

"Insofar as the exercise of equity jurisdiction by a court of common pleas is concerned, Pennsylvania's legal history is unique. Although from earliest times courts of common pleas in Pennsylvania did recognize and apply equitable principles as part of the common law of the Commonwealth (Morton's Estate, 201 Pa. 269, 270, 271, 50 A. 933 (1902)), courts of common pleas were strictly common law courts which neither possessed nor exercised the powers of a court of chancery by reason of an existing public prejudice against chancery courts. However, gradually over the years, by constitutional fiat (cf. Art. V, ยง 20 of the Constitution of Pennsylvania) and by legislation, courts of common pleas were granted chancery powers in certain specified areas. However, the extent to which a court of common pleas may exercise such chancery powers lies within the control of the legislature.

"A court of common pleas is a constitutional court whose jurisdiction is general in all matters involving the law but is limited in matters involving equity to the extent delineated by the legislature." 430 Pa. at

[ 8 Pa. Commw. Page 210295]

-96, 240 A.2d at 547-48 (Emphasis in original; footnotes omitted.)

As applied to this case we must, therefore, look to the legislative grant of equity jurisdiction with respect to strikes by public employees. Section 1003 of PERA provides in part: "If a strike by public employes occurs . . . it shall not be prohibited unless and until such a strike creates a clear and present danger or threat to the health, safety or welfare of the public. In such cases the public employer shall initiate . . . an action for equitable relief including but not limited to appropriate injunctions and shall be entitled to ...


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